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Walsh v. Fanslow

OPINION FILED APRIL 12, 1984.

JAMES R. WALSH, PLAINTIFF-APPELLANT,

v.

RICHARD FANSLOW ET AL., DEFENDANTS (JULIAN GOLDING ET AL., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County; the Hon. Brian Duff, JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

On July 24, 1980, plaintiff, James R. Walsh, a real estate broker, filed a complaint against Julian Golding, Marvin Robinson, Maurice Harris, the Austin-Madison Industrial partnership, and Richard Fanslow, defendants. Fanslow is not a party to this appeal. Hereafter, the term "defendants" does not include Fanslow, who will be referred to as Fanslow.

The trial court dismissed plaintiff's fourth amended complaint as to defendants. The fourth amended complaint contained amendments to counts II and III. Count I of the complaint which stated a cause of action against Fanslow for a breach of a real estate broker's contract between plaintiff and Fanslow was allowed to stand. Counts II and III specifically related to defendants and not to Fanslow. The issues on appeal are (1) whether count II of the fourth amended complaint states a cause of action for intentional interference with a contractual relationship and (2) whether count III states a cause of action for conspiracy to interfere with a contractual relationship.

We reverse.

Count I of the two-count complaint filed on July 24, 1980, alleged that in December 1976 plaintiff was contacted by a real estate broker from Applegate Leason and Company regarding an open listing for sale of some property owned by Fanslow. The property consisted of two buildings located in Morton Grove, Illinois. Plaintiff alleged that he had discussions with Fanslow on numerous occasions in December 1976 and January 1977. Plaintiff said that he and Fanslow made an oral agreement to pay Walsh 10% of the purchase price, less the mortgage, if plaintiff procured a buyer who was ready, willing and able to buy the property. Plaintiff further alleged that he was the procuring cause of the sale of the property and that Fanslow breached their agreement by refusing to pay the commission due. Plaintiff demanded judgment against Fanslow in excess of $15,000 for his commission, plus interest and costs.

Count II of the complaint concerned defendants Golding, Robinson, Harris, and the Austin-Madison partnership. On September 3, 1980, defendants filed a motion to strike count II of plaintiff's complaint on the ground that it was legally insufficient in that it failed to state facts sufficient to state a cause of action.

On January 9, 1981, the trial court granted defendants' motion to strike count II and allowed plaintiff 28 days in which to amend count II of the complaint. On February 6, 1981, plaintiff filed his first amended complaint. On March 4, 1981, defendants filed a motion to strike plaintiff's amended count II on the ground that it failed to state a cause of action.

On May 6, 1981, the trial court granted defendants' motion to strike plaintiff's amended complaint. On June 9, 1981, plaintiff filed his second amended complaint which contained a third count.

On January 12 and July 27, 1982, the trial court granted defendants' motions to dismiss plaintiff's second and third amended complaints, respectively, on the ground that the counts did not state a cause of action against defendants for either intentional interference with a contractual relationship or for conspiracy to interfere with a contractual relationship.

On August 24, 1982, plaintiff filed his fourth amended complaint. Summarily, plaintiff's fourth amended complaint charged that plaintiff and Fanslow had an oral contract by which Fanslow employed plaintiff to procure a purchaser ready, willing and able to purchase the property within a reasonable time, at a reasonable price, upon reasonable terms. Plaintiff was to receive 10% of the purchase price, less the mortgage, as commission for procuring a purchaser.

Plaintiff alleged that in January 1977 he informed defendant Robinson that he (plaintiff) was the real estate broker for the property and gave Robinson information concerning the property. Plaintiff alleged that he fully performed his agreement and was the procuring cause of the sale which eventually took place.

Further, count II charged that defendants knew of the real estate contract between plaintiff and Fanslow and that they then conspired to deprive plaintiff of his commission by concealing the purchase from him. After the purchase, in an effort to conceal it, defendants conveyed the property to the defendant partnership of which Golding, Robinson and Harris are general partners. As a direct result of defendants' wrongful acts, plaintiff charged that he was deprived of his commission. He asked that judgment be entered for a sum in excess of $15,000 for his commission, plus interest and costs.

Count III of the fourth amended complaint realleged some of the charges made in count II. Summarily, count III charged that the defendants and Fanslow conspired in a fraudulent, malicious, and wrongful way to purchase the property without plaintiff's knowledge, and that they concealed the purchase for the purpose of depriving plaintiff of his commission.

Further, defendants conveyed the property to the partnership in order to conceal their wrongful acts and deprive plaintiff of his commission. The purchase price paid by defendants was believed by the plaintiff to be $2,000,000. Plaintiff asked for judgment in excess of $15,000 for his commission, plus interest and costs.

Defendants filed a motion to dismiss plaintiff's fourth amended complaint. The motion asserted that count II of plaintiff's fourth amended complaint lacked factual statements to support a cause of action for intentional interference with a contractual relationship. Further, there were no facts which alleged a valid and enforceable contract between plaintiff and Fanslow; neither were there facts which alleged an actual and intentional breach of contract. Defendants' motion to dismiss went on to say that the allegations against the defendant partnership were insufficient because the partnership was not formed until after the contract to ...


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